This simple presentation provides background as to the ideals behind the recent DOL overtime and salary basis changes. Changes are effective in December of this year so employers need to look at their job descriptions, look at the hours worked, and engage in some analysis as to their business needs in order to remain complaint with the updated regulations.

From Hultman Sensenig + Joshi: Reading this blog does not create an attorney client relationship nor is legal advice given in this blog. The overtime issues are very serious for employers and we do suggest reviewing your policies and procedures to prepare for the upcoming changes – and enforcement efforts. Let us know if we can help you.

The new FMLA forms published by the DOL are for use through May 2018. Very few changes were made, but the Genetic Information Non-Discrimination Act is now specifically referenced as physicians were sometimes providing a little too much information on the forms.

Go to: http://www.dol.gov/whd/fmla/ and you will find the treasure trove of forms for all of your FMLA needs, including:

WASHINGTON — Officials from the U.S. Department of Labor and the Florida Department of Revenue today signed a memorandum of understanding with the goal of protecting the rights of employees by preventing their misclassification as independent contractors or other nonemployee statuses. Under the agreement, both agencies will share information and coordinate law enforcement. The MOU represents a new effort on the part of the agencies to work together to protect the rights of employees and level the playing field for responsible employers by reducing the practice of misclassification. The Florida Department of Revenue is the latest state agency to partner with the Labor Department.
In Fiscal Year 2013, WHD investigations resulted in more than $83,051,159 in back wages for more than 108,050 workers in industries, such as janitorial, food, construction, day care, hospitality and garment. WHD regularly finds large concentrations of misclassified workers in low-wage industries.
“Misclassification deprives workers of rightfully-earned wages and undercuts law-abiding businesses,” said Dr. David Weil, administrator of the Wage and Hour Division. “This memorandum of understanding sends a clear message that we are standing together with the state of Florida to protect workers and responsible employers and ensure everyone has the opportunity to succeed.” “Working with the states is an important tool in ending misclassification,” said Wayne Kotowski, the Wage and Hour Division’s regional administrator for the southeast. “These collaborations allow us to better coordinate compliance with both federal and state laws alike.” “By partnering with the U.S. Department of Labor we are actively working to level the playing field for Florida’s businesses to stop the misclassification of workers. Businesses that misreport workers obtain an unfair advantage over other law-abiding businesses,” said Florida Department of Revenue Executive Director, Marshall Stranburg.

Business models that attempt to change or obscure the employment relationship through the use of independent contractors are not inherently illegal, but they may not be used to evade compliance with federal labor law. Although legitimate independent contractors are an important part of our economy, the misclassification of employees presents a serious problem. Independent contractors are often denied access to critical benefits and protections, such as family and medical leave, overtime compensation, minimum wage pay and unemployment insurance, to which they are entitled. In addition, misclassification can create economic pressure for law-abiding business owners, who often find it difficult to compete with those who are skirting the law.
Memoranda of understanding with state government agencies arose as part of the department’s Misclassification Initiative, with the goal of preventing, detecting and remedying employee misclassification. Alabama, California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, New York, Utah and Washington state agencies have signed similar agreements. More information is available on the Department of Labor’s misclassification website at http://www.dol.gov/misclassification/.
The mission of the department is to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and ensure work-related benefits and rights. To learn more about the FLSA’s requirements, call the Wage and Hour Division’s toll-free hotline at 866-4US-WAGE (487-9243) or visit its website at http://www.dol.gov/whd/.

From Hultman Sensenig + Joshi: This is a topic near and dear to our hearts; if someone works only for you, is paid a salary, has no tools or equipment, and you control nearly every aspect of their employment, is it highly doubtful that they are a legitimate independent contractor. With this new agreement between the U.S. DOL and the FL DOR, if either Agency pays an employer a visit to review your “employees” vs. “contractors”, the other agency will soon be there to review whether civil money penalties and back taxes are owed – this is an expensive proposition. Be proactive, review the status of the people you engage vs. employ, and get some assistance if you have any questions.

There is no legal advice given through this blog, nor is an attorney client relationship created through the reading of this blog.

This posting is taken verbatim from the U.S. DOL’s blog: http://blog.dol.gov/2014/12/15/a-new-year-new-osha-reporting-requirements/?utm_source=rss&utm_medium=rss&utm_campaign=a-new-year-new-osha-reporting-requirements.

The New Year will be here before we know it! For employers under the federal jurisdiction of the Occupational Safety and Health Administration that means more than just making resolutions, they will need to comply with new reporting requirements going into effect January 1, 2015.

OSHA-flowEmployers will now be required to report all work-related fatalities within 8 hours and all in-patient hospitalizations, amputations, and losses of an eye within 24 hours of finding about the incident. Previously, employers were required to report all workplace fatalities and when three or more workers were hospitalized in the same incident.

There will be three options for employers to report. They will be able to call their nearest area office during normal business hours, call the 24-hour OSHA hotline at 1-800-321-OSHA (1-800-321-6742), or report online.

Since announcing the new requirements in September, we’ve been conducting extensive outreach to make sure employers understand what to do when they go into effect. Just last week, we held a live Twitter chat to answer questions.

During the chat, we answered over a dozen questions. But we noticed a few that seemed to be on everyone’s mind. So, we decided to share with you a little FAQ:

Q: How can an employer confirm the report from an injury has been documented?

A: If you do it online, you will receive email confirmation. By phone, you will be speaking directly to OSHA representatives.

Q: What is the best URL on the OSHA site to point our branch offices to for details of their obligations to report?

Q: What constitutes formal admittance for care? Surgeries can be either outpatient or inpatient.

A: The hospital or clinic determines whether the worker was formally admitted as an in-patient.

We also have a variety of additional resources for employers including a dedicated webpage, more FAQs, a Fact Sheet, and a video I recorded to help explain the new requirements.

It’s important to remember that these updated reporting requirements are not simply paperwork but have a life-saving purpose: they will help employers and workers prevent future injuries by identifying and eliminating the most serious workplace hazards.

I think we can all agree that’s something to celebrate in the New Year.

Dr. David Michaels is the assistant secretary of labor for Occupational Safety and Health.

From the Sensenig Law Firm, P.A.: As we make resolutions to get more exercise, spend more time with family, drink less, and eat healthier foods, let’s add “keep our business healthy” by ensuring compliance with OSHA to the list. Consider designating someone to be your OSHA point person, make sure your logs and reports are kept up to date and maintained. Take a look at the FAQ sheet as to what else you may need to do in case of a workplace injury – workers’ compensation is not your only concern. To quote a favorite line from a venerable old TV show, “Be careful out there.”

Please be aware that reading this blog does not create an attorney client relationship, nor is any information provided in this considered to be legal advice.

TAMPA, Fla. — A multiyear enforcement initiative conducted by the U.S. Department of Labor’s Wage and Hour Division has uncovered widespread labor violations in the central Florida agricultural industry. The initiative focused on hand-harvested crops — including citrus, strawberries, tomatoes, blueberries and watermelons — where many vulnerable migrant workers are employed and recovered average back wages of $340 per worker, more than enough to buy a week’s worth of groceries.
The initiative found migrant workers were often required to perform intense physical labor for long periods without compensation in violation of federal law. Other labor violations exposed these workers to unsafe transportation and unsanitary housing conditions. The investigations also found that employment conditions were not disclosed to workers. During fiscal year 2014, the division’s Tampa District Office conducted 155 agricultural investigations and recovered more than $131,000 in back wages for 387 workers. The division also assessed approximately $196,000 in civil money penalties.
“We are working harder and smarter to combat labor violations in the agricultural industry. We are studying employment relationships and directing our enforcement efforts throughout the supply chain to protect workers better and address problems at every level of the industry,” said Dr. David Weil, administrator for the Wage and Hour Division. “All our efforts are aimed at helping move employers toward positive, compliant business practices, so that workers and employers can prosper together.”
“We are committed to strong enforcement, but are also working with the industry to promote long-lasting compliance and a level playing field for law-abiding businesses. For example, we have partnerships with the citrus industry to provide compliance assistance and learn about industry problems. This cooperation has led to increased compliance with labor laws. In 2014, we saw fewer violations in the citrus industry than in 2013,” said James Schmidt, director of the division’s Tampa District Office. “We are eager to work with others, such as strawberry growers, where we continue to find significant labor violations.”
Under the ongoing initiative, investigators will continue to visit fields and packinghouses to assess compliance among agricultural employers, facility owners, growers, farm labor contractors and other businesses providing services to these agricultural operations. Thorough inspections of migrant housing units, vehicles, field sanitation facilities, and employment practices and pay records are being conducted to ensure compliance with applicable child and agricultural labor standards. When violations are found, the division will pursue corrective action, including litigation and the assessment of liquidated damages and civil money penalties, to recover workers’ wages and ensure accountability under the law.
These violations were committed under federal labor laws that set minimum standards for wages and disclosure of employment conditions to workers, basic standards for employers to provide safe and clean housing and safe transportation to workers, and standards for workers’ access to clean drinking water and toilet facilities in the field.
During FY14, the division is focused on educating stakeholders in the agricultural industry and continues to conduct educational outreach sessions, which provide valuable education and compliance assistance to agricultural employers, farm labor contractors and employees.
Most agricultural employers, agricultural associations and farm labor contractors are subject to the Migrant and Seasonal Agricultural Worker Protection Act, which provides protections for migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures and record keeping. The MSPA also requires farm labor contractors to register with the department.
The Fair Labor Standards Act requires that covered workers be paid at least the national minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates, for hours worked beyond 40 per week. The field sanitation provisions of the Occupational Safety and Health Act require covered employers to provide toilets, potable drinking water, hand washing facilities and information regarding good hygiene practices to their employees.
The Wage and Hour Division’s Tampa District Office can be reached at 813-288-1242. Information on the FLSA and other wage laws is available by calling the division’s toll-free helpline at 866-4US-WAGE (487-9243) and visiting the division’s website at http://www.dol.gov/whd/.

From the Sensenig Law Firm: For my colleagues and friends in the harvesting and agricultural professions, this is very important for you to know – compliance does have value; compliance affects your bottom line. Take the upcoming harvesting season and the New Year as a good starting point to make compliance an achievable goal for your business.

Nothing in this blog is to be construed as the Sensenig Law Firm, P.A. as having provided legal advice. There is no attorney client relationship created as a result of the posting or reading of this blog.

Proposed rule to extend Family Medical Leave Act protections to all eligible employees in same-sex marriages announced by US Labor Secretary.

WASHINGTON — U.S. Secretary of Labor Thomas E. Perez announced today a proposed rule extending the protections of the Family and Medical Leave Act to all eligible employees in legal same-sex marriages regardless of where they live. The proposal would help ensure that all families will have the flexibility to deal with serious medical and family situations without fearing the threat of job loss. Secretary Perez is proposing this rule in light of the Supreme Court’s decision in United States v. Windsor, in which the court struck down the Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.

The FMLA, enacted in 1993, entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Employees are, for example, entitled to take FMLA leave to care for a spouse who has a serious health condition. Millions of workers and their families have benefited since the FMLA’s provisions became effective and even more American families would be made secure as a result of the proposed rule.

“The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” said Secretary Perez. “Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.”
The proposed rule would change the FMLA regulatory definition of “spouse” so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse or family member regardless of the state in which the employee resides. Currently, the regulatory definition of “spouse” only applies to same-sex spouses who reside in a state that recognizes same-sex marriage. Under the proposed rule, eligibility for FMLA protections would be based on the law of the place where the marriage was entered into, allowing all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless whether the state in which they currently reside recognizes such marriages.

Following the Windsor decision, noting that it was “a victory… for families that, at long last, will get the respect and protection they deserve,” President Obama directed the Attorney General to work with the Cabinet to review federal statutes to ensure the decision, including its implications for federal benefits and obligations, is implemented.

For additional information on the FMLA, including information and fact sheets on the proposed revisions, visit http://www.dol.gov/whd/fmla/nprm-spouse. The department encourages all interested parties to view the proposed rule and submit comments at http://www.regulations.gov. The regulation identification number is 1235-AA09. Comments must be received within 45 days following publication in the Federal Register.

Major features of the new proposed rule:

The Department is proposing to move from a “state of residence” rule to a rule based on where the marriage was entered into (sometimes referred to as “place of celebration”).

The proposed definition of “spouse” expressly references the inclusion of same-sex marriages in addition to common law marriages, and will encompass same-sex marriages entered into abroad that could have been entered into in at least one State.

The Department of Labor proposes to define “spouse” as follows:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Comments from the Sensenig Law Firm:

What all of this means is that a whole lot of Handbooks are going to require a whole lot of revisions if the proposed Rule is approved. Employers will need to become a bit more savvy as to laws outside of the “home” state. The proposed rule is following along with the notion of “full faith and credit.” I am sure the proposed rule will be hotly debated and this is just the first draft of proposed new FMLA language. Each and every one of us has the ability to send our comments/opinions to the DOL about this proposed language, and the proposed Rule’s impact on the workplace.

The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.